Himachal Pradesh High Court
Decided On : 26.07.2023 vs State Of Himachal Pradesh on 26 July, 2023
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No.: 1737 of 2023
.
Reserved on : 21.07.2023
Decided on : 26.07.2023
Mangat Ram alias Mahant ....Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting? 1
For the petitioner : Mr. Harsh, Advocate.
For the respondent : Ms. Sharmila Patial
Additional Advocate
General with Mr. Rohit
Sharma and Ms. Priyanka
Chauhan, Deputy
Advocate General.
Satyen Vaidya, Judge
Petitioner is an accused in case FIR No.
201/2021, dated 02.12.2021, registered under
Section 20 of Narcotic Drugs and Psychotropic
Substances, Act (for short 'ND&PS' Act), at Police
Station Baijnath, District Kangra, H.P. Petitioner is
in custody since 2.12.2021.
1 Whether reporters of the local papers may be allowed to see the judgment?
2. Petitioner is facing trial for offences
under Section 20 of ND&PS Act in pursuance to
.
challan filed by respondent. The case of the
prosecution is that on 2.12.2021, at about 6:55 am,
a secret information was received at Police Station
Baijnath, District Kangra, H.P. that the petitioner is
involved in the business of narcotic substances. On
such information,
the shop of the
situated at Village Lohardi Bazaar was searched
r petitioner
and during search of the shop 1 Kg 621 Grams of
Charas was recovered.
3. Petitioner has now prayed for grant of
bail on the ground that his constitutional right of
expeditious disposal of trial has been infringed. As
per petitioner, he is in custody for one year and
six months and the trial has not concluded, rather,
it is progressing at snail's pace.
4. It is disclosed by the petitioner that
there are total twenty-five prosecution witnesses.
None of the prosecution witness has been examined
till date.
5. Learned Additional Advocate General has
opposed the prayer of the petitioner, on the ground
.
that Section 37 of ND&PS Act, has application in
the facts of the case and merely, on the ground of
delay in conclusion of trial, petitioner cannot be
released on bail.
6. I have heard learned counsel for the
petitioner as well as learned Additional Advocate
General and have also gone through the status
report.
7. The fetters placed by Section 37 of
ND&PS Act, evidently have been instrumental in
denial of right of bail to the petitioner in the
instant case till date. The question that arises for
consideration is, can the provision of Section 37 of
the Act, be construed to have same efficacy
throughout the pendency of trial, notwithstanding,
the period of custody of the accused, especially,
when it is weighed against his fundamental right
to have expeditious disposal of trial.
8. As is suggested by the contents of
status report, none of the prosecution witness has
.
been examined till date despite the fact that
petitioner is in custody since 2.12.2021. In the
considered view of this Court, the Constitutional
guarantee of expeditious trial cannot be diluted
by applying the rigors of Section 37 of ND&Ps Act
in perpetuity.
9. Recently,
r to
in a number of cases,
under-trials for offences involving commercial
quantity of contraband under ND&PS Act have
been allowed the liberty of bail by Hon'ble
Supreme Court only on the ground that they have
been incarcerated for prolonged durations.
10. In Mahmood Kurdeya Vs. Narcotic
Control Bureau (2022) 3 RCR (Criminal) 906, Hon'ble
Supreme Court has held as under:-
"6.What persuades us to pass an order in favour of
the appellant is the fact that despite the rigors
of Section 37 of the said Act, in the present case
though charge sheet was filed on 23.09.2018 even
the charges have not been framed nor trial has
commenced."
11. In Nitish Adhikary @ Bapan Vs.The
State of West Bengal (Special Leave to Appeal
.
(Cr.L.) No (s). 5769 of 2022, decided on 01.08.2022,
Hon'ble Supreme Court has held as under:-
"During the course of the hearing, we are informed
that the petitioner has undergone custody for a
period of 01 year and 07 months as on
09.06.2022. The trial is at a preliminary stage, as
only one witness has been examined. The
petitioner does not have any criminal antecedents.
Taking into consideration the period of sentence
undergone by the petitioner and all the attending
circumstances but without expressing any views
in the merits of the case, we are inclined to grant
bail to the petitioner."
12. In Gopal Krishna Patra @ Gopalrusma
Vs. Union of India (Cr. Appeal No. 1169 of 2022),
decided on 05.08.2022, Hon'ble Supreme Court has
held as under:-
" The appellant is in custody since 18.06.2020 in
connection with crime registered as NCB Crime No.
02/2020 in respect of offences punishable under
Sections 8,20,27-AA, 28 read with 29 of the
Narcotic Drugs and Psychotropic Substances Act,
1098.
The application seeking relief of bail having been
rejected, the instant appeal has been fled.
We have heard Mr. Ashok Kumar Panda, learned
Senior Advocate in support of the appeal and Mr.
Sanjay Jain, learned Additional Solicitor General
for the respondent.
Considering the fact and circumstances on record
and the length of custody undergone by the
.
appellant, in our view the case for bail is made
out."
13. In Chitta Biswas @ Subhas Vs. The
State of West Bengal, (Criminal Appeal No.(s) 245
of 2020, decided on 07.02.2020, it has been held as
under:-
r to
"The appellant was arrested on 21.07.2018 and
continues to be custody. It appears that out of 10
witnesses cited to be examined in support of the
case of prosecution four witnesses have already
been examined in the trial.
Without expressing any opinion on the merits or
demerits of the rival submission and considering
the facts and circumstances on record, in our
view, case for bail is made out."
14. In Abdul Majeed Lone Vs. Union
Territory of Jammu and Kashmir( Special Leave
to Appeal (Cr.L.) No. 3961 of 2022, decided on
01.08.2022, it has been held as under:-
"Having regard to the fact that the petitioner is
reported to be in jail since 1-3-2020 and has
suffered incarceration for over 2 years and 5
months and there being no likelihood of completion
of trial in the near future, which fact cannot be
controverted by the learned counsel appearing for
the UT, we are inclined to enlarge the petitioner on
bail.".
.
15. In addition, different Co-ordinate
Benches of this Court have also followed precedent
to grant bail to the accused in ND&PS Act, on the
ground of prolonged pre-trial incarceration.
Reference can be made to order dated 28.07.2022,
passed in Cr.MP(M) No. 1255 of 2022, order dated
01.12.2022, passed in Cr.MP(M) No. 2271 of 2022
and order dated 04.11.2022, passed in Cr.MP(M)
No. 2273 of 2022.
16. In Criminal Appeal No. 943 of 2023
titled as Mohd Muslim @ Hussain Vs. State (NCT
of Delhi), Hon'ble Supreme Court, vide its
judgment dated 28.03.2023, has held as under:-
"21. Before parting, it would be important to reflect
that laws which impose stringent conditions for
grant of bail, may be necessary in public interest;
yet, if trials are not concluded in time, the injustice
wrecked on the individual is immeasurable. Jails
are overcrowded and their living conditions, more
often than not, appalling. According to the Union
Home Ministry's response to Parliament, the
National Crime Records Bureau had recorded that
as on 31st December 2021, over 5,54,034
prisoners were lodged in jails against total
capacity of 4,25,069 lakhs in the country20. Of
.
these 122,852 were convicts; the rest 4,27,165
were undertrials.
22. The danger of unjust imprisonment, is that
inmates are at risk of "prisonisation" a term
described by the Kerala High Court in A Convict
Prisoner v. State21 as "a radical transformation"
whereby the prisoner:
"loses his identity. He is known by a
number. He loses personal possessions. He
has no personal relationships. Psychological
r problems result from loss of freedom, status,
possessions, dignity any autonomy of
personal life. The inmate culture of prison
turns out to be dreadful. The prisoner
becomes hostile by ordinary standards.
Self-perception changes."
23. There is a further danger of the prisoner turning to
crime, "as crime not only turns admirable, but the
more professional the crime, more honour is paid to
the criminal"22 (also see Donald Clemmer's 'The
Prison Community' 20 National Crime Records
Bureau, Prison Statistics in India
https://ncrb.gov.in/sites/default/files/ PSI-
2021/Executive_ncrb_Summary-2021.pdf 21 1993
Cri LJ 3242 22 Working Papers - Group on Prisons &
Borstals - 1966 U.K. published in 194023).
Incarceration has further deleterious effects - where
the accused belongs to the weakest economic strata:
immediate loss of livelihood, and in several cases,
scattering of families as well as loss of family bonds
and alienation from society. The courts therefore,
have to be sensitive to these aspects (because in the
event of an acquittal, the loss to the accused is
.
irreparable), and ensure that trials - especially in
cases, where special laws enact stringent provisions,
are taken up and concluded speedily."
17. Recently in Special Leave to Appeal
(Crl.) No. (s) 4169 of 2023, titled as Rabi Prakash
Vs. The State of Odisha, Hon'ble Supreme Court,
vide its judgment dated 13.07.2023, has held as
under:-
"4. As regard to the twin conditions contained
in Section 37 of the NDPS Act, learned counsel for the
respondent - State has been duly heard. Thus, the
1st condition stands complied with. So far as the 2nd
condition re: formation of opinion as to whether there
are reasonable grounds to believe that the petitioner
is not guilty, the same may not be formed at this
stage when he has already spent more than three
and a half years in custody. The prolonged
incarceration, generally militates against the most
precious fundamental right guaranteed under Article
21 of the Constitution and in such a situation, the
conditional liberty must override the statutory
embargo created under Section 37(1)(b)(ii) of the NDPS
Act."
18. Reverting to the facts of the case, the
petitioner is in custody since 2.12.2021 and the
facts suggest that the trial is not likely to be
concluded in near future. There is nothing on
.
record to suggest that delay in trial is attributable
to the petitioner.
19. Keeping in view the facts of the case and
also the above noted precedents, the bail petition is
allowed and petitioner is ordered to be released on
r to
bail in case FIR No. 201/2021, dated 02.12.2021,
registered under Section 20 of ND&PS Act, at
Police Station Baijnath, District Kangra, H.P., on
his furnishing personal bond in the sum of Rs.
1,00,000/- with two sureties each in the like
amount to the satisfaction of learned trial court.
This order shall, however, be subject to the
following conditions:-
i) Petitioner shall regularly attend the trial of
the case before learned Trial Court and shall
not cause any delay in its conclusion.
ii) Petitioner shall not tamper with the
prosecution evidence, in any manner,
whatsoever and shall not dissuade any
person from speaking the truth in relation to
the facts of the case in hand.
iii) Petitioner shall be liable for immediate
arrest in the instant case in the
event of petitioner violating the
conditions of this bail.
(iv) Petitioner shall not leave India
without permission of learned trial
Court till completion of trial.
.
20. Any expression of opinion herein-above
shall have no bearing on the merits of the case
and shall be deemed only for the purpose of
disposal of this petition.
26th July, 2023
(sushma)
r to (Satyen Vaidya)
Judge
